New York criminal lawyers and New York DWI attorneys are often confronted with defending clients against numerous “types” of DWI and DUI charges. Whether the drunk driving crime is Common Law DWI, Aggravated DWI or Per Se DWI, a NY criminal attorney has to be prepared to attack not only the drunk driving charge, but the basis or foundation of the police officer’s arrest.
In an all too common scenario, maybe you were speeding up the FDR on Manhattan’s East Side, or maybe you gassed your car a little too much flying up Flatbush Avenue in Brooklyn. Unfortunately, all of a sudden- when it’s already too late- you see a police car out of the corner of your eye. By the time you spot the vehicle, the sirens are blaring and moments later you are lamenting the possibility of a mammoth speeding ticket. Whether you are out in Westchester or Rockland County, or closer to the City in the Bronx Manhattan, Brooklyn, or Queens, it should not merely be the speeding ticket that concerns you if you have had the proverbial “couple of drinks.” While you certainly have greater reason for concern, the question your DWI lawyer will confront is whether your routine speeding stop is sufficient basis to “blow” up your traffic case into a conviction for Driving While Intoxicated pursuant to Vehicle and Traffic Law 1192. In this blog post I want to examine a recent DWI and VTL 1192 case that touches on the subject. More broadly, we will address what kind of evidence can be used to obtain a conviction for Driving While Intoxicated pursuant to VTL 1192.
People v. Scott J. Grennon, 2009-2125 OR CR, NYLJ 1202510870265, at*1 (App. Tm., Decided July 27, 2011) involved a motorist who was arrested for Aggravated Driving While Intoxicated Per Se (VTL 1192.2(a)), Driving While Intoxicated Per Se (VTL 1192.2), Common Law Driving While Intoxicated (VTL 1192.3), and speeding (VTL 1180(d)). However, and extremely crucial to our analysis, the jury acquitted the defendant of Aggravated Driving While Intoxicated Per Se and Driving While Intoxicated Per Se, BUT convicted the defendant of Common Law Driving While Intoxicated and speeding. Grennon appealed on the grounds that there was not enough evidence to sustain the conviction of Common Law DWI.
Now before getting further into the facts of the case it is essential to note the difference between these types of DWI charges. Under the DWI “per se” statutes (VTL 1192.2 and 1192.2a), a person is guilty if he/she drives with a blood alcohol content (BAC) of .08% or higher or .18 or higher respectively. Both of these crimes are misdemeanors, but the latter Aggravated DWI offense carries stiffer penalties. On the other hand, a person can be prosecuted for “Common Law” DWI (VTL 1192.3) if based on the totality of the circumstances, and evidence gathered in the course of the arrest/incident, the officer observes (and the prosecution can establish beyond a reasonable doubt) that the driver was “intoxicated.
Applying the criminal law to this case, if there was enough evidence for the officer to establish that Grennon was intoxicated in the course of pulling Mr. Grennon over and observing him (but without a BAC reading), then the Common Law DWI conviction would be upheld. What evidence did the People have to support the Common Law DWI conviction, you ask? Well a state trooper saw Mr. Grennon speeding (estimated 95 MPH in a 65 MPH zone) on the New York State Thruway in Woodbury, Orange County (upstate NY). The trooper “spotlighted” the defendant and began to follow the Mr. Grennon for a considerable distance. [Note that in New York if an officer has training and considerable experience in estimating the speeds of vehicles, then the officer’s testimony- even without a radar gun- can uphold a speeding conviction]. While obtaining the defendant’s driver’s documentation, the trooper detected the odor of an alcoholic beverage on Mr. Grennon’s breath. Grennon admitted that he was driving home from a Yankees game, where he had consumed beer. The trooper testified that Mr. Grennon’s eyes were “glassy” and arrested the defendant.
The Appellate Court ruled that the evidence against the defendant was insufficient to sustain a DWI conviction. Speeding, exhibiting glassy eyes, an odor of an alcoholic beverage, and an admission of consuming beer at some point earlier did not provide significant indicia of actual impairment of motor coordination. Since the officer did not conduct any field sobriety tests the court felt that there was not enough evidence to support the conviction of Common Law Driving While Intoxicated. While the People concentrated on the speeding aspect of the case, the Court stated as follows:
“Although speeding might be taken to reveal a diminishment of the ‘mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver’ (People v Cruz, 48 NY2d 419, 427 ; e.g. People v Barger, 78 AD3d 1191, 1192 ), absent any other evidence tending to prove defendant’s inability physically to operate his vehicle as a reasonable and prudent person, the proof of speeding is too equivocal to be given significant weight as to defendant’s state of intoxication.”
The big takeaway from this New York DWI case is that the Common Law DWI conviction standard–that the officer must observe actual impairment of motor coordination–may be a higher standard than one might expect. An officer cannot just smell alcohol and look at your eyes to determine that you are impaired. Moreover, while speeding might show that the motorist is not a reasonable or prudent driver, absent any other evidence tending to prove the defendant’s inability physically to operate his vehicle, the proof of speeding may not give the necessary legal weight to the contention that the defendant is intoxicated. Keep one last (and critical) thing in mind…While this case resulted in a successful outcome for the accused and furthered a legal standard as to what satisfies proof beyond a reasonable doubt in a DWI case, each set of facts may be interpreted differently by a court. What if, for example, there was one or two other factors? What if the defendant stumbled as he exited the vehicle or fumbled his license and registration? Maybe then, not only would a new legal precedent be set, but Mr. Grennon might have spent time behind bars saddled with a criminal record.
To educate yourself about New York DWI laws and New York DWI crimes, please follow either of the highlighted links. On Crotty Saland PC’s DWI information page you will find links to the numerous types of DWI offenses, information on punishment and sentencing for DUI convictions, and analysis of legal decisions interpreting New York DWI laws and crimes.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors who served in the New York County District Attorney’s Office and its DWI Unit. The New York criminal lawyers at Crotty Saland PC represent the accused throughout the New York City region.